Protection Visa Subclass 866 ART Review

Protection Visa Subclass 866 ART Review: The Process From Lodgement to Decision

A Protection Visa Subclass 866 ART Review is a fresh decision by the Administrative Review Tribunal on whether you should be granted a protection visa, and it moves through a fixed sequence of steps from the review application to the written decision. Missing one step can end the review before your claims are heard.

The Administrative Review Tribunal, known as the ART, replaced the Administrative Appeals Tribunal and the Immigration Assessment Authority on 14 October 2024. A refusal of a Subclass 866 Protection visa is a "reviewable protection decision" under section 338A of the Migration Act 1958. Section 347 allows an application to the Tribunal for review of that decision.

A Protection Visa Subclass 866 ART Review is merits review. The Tribunal does not simply check whether the Department made a legal mistake. It takes a fresh look at the facts, the law and the evidence, and it makes the correct or preferable decision itself. Under section 54 of the Administrative Review Tribunal Act 2024, the Tribunal may exercise all the powers and discretions of the original decision maker. In practical terms, the Tribunal stands in the shoes of the Department's delegate.

The Tribunal decides on the material before it at the time of the review, which includes new evidence that was not available to the Department. A Protection Visa Subclass 866 ART Review is therefore a real second chance to present your case properly.

In broad terms, the process runs in this order:

• You lodge a valid review application within the time limit.
• The Tribunal notifies the Department, and the Department sends its file to the Tribunal.
• You obtain the Department's file and study the decision record.
• You prepare written submissions, statements and further evidence.
• The Tribunal invites you to a hearing.
• You attend the hearing and give evidence.
• You provide any post-hearing material the Tribunal allows.
• The Tribunal makes its decision and gives you a written statement of reasons.

This article explains each of those steps in order. For the reasons a refusal is made and the options that follow it, see our page on protection visa refusals. For the visa itself, see our Subclass 866 Protection visa page.

Who Can Apply for a Protection Visa Subclass 866 ART Review?

Only the person who was refused the protection visa can apply for a Protection Visa Subclass 866 ART Review, and that person must be physically in Australia when the review application is made. These two rules come from section 347A(4) and section 347A(5) of the Migration Act.

The general rule in the ART Act that allows another person to apply on your behalf does not apply to reviewable protection decisions. A relative, a friend or a community member cannot lodge the review in their own name for you. The application must be made by you, as the review applicant, although a lawyer can prepare and lodge it for you as your representative.

The physical presence rule is strict. If you leave Australia before the review application is made, you cannot make a valid application. Leaving Australia after lodgement also carries serious risk, because clause 866.411 of the Migration Regulations 1994 requires you to be in Australia when a Subclass 866 visa is granted.

Not every refusal qualifies for a Protection Visa Subclass 866 ART Review. Section 338A excludes some decisions. These include refusals that rely on certain security and serious criminality provisions, such as sections 5H(2), 36(1B) and 36(1C), and decisions covered by a conclusive certificate issued by the Minister. Some of these decisions are reviewed under a different pathway in section 500. A decision that your protection visa application was invalid in the first place is not a refusal at all, and it is not reviewable by the ART. Your refusal letter will tell you whether review is available, who can apply and the time limit.

Family members who applied with you are usually covered by the same refusal decision. The Tribunal reviews the decision for the family unit. A child born after the refusal is not automatically added to the review, and a separate review application may be needed once the child has been refused.

How to Lodge the Application for a Protection Visa Subclass 866 ART Review

The application must be lodged with the Tribunal within the time limit, in a manner the Tribunal accepts, and it must contain the information and documents the law prescribes. The time limit is short and strictly applied. It runs from the day you are notified of the decision, and the Tribunal has no power to extend it. An application made after the time limit ends is not properly made, and the Tribunal has no jurisdiction to consider it.

What must be included

Section 347(2) of the Migration Act and regulation 4.31 of the Migration Regulations 1994 set out what an application for review of a protection decision must contain. The most important requirement is simple. If you have a copy of the Department's notification of the decision, the application must be accompanied by that copy. If you do not have it, you must give identifying details instead, including your full name, your address and contact details, and a description of the decision and its date if you know it.

In practice, a complete Protection Visa Subclass 866 ART Review application should include:

• your full name, date of birth and contact details;
• your residential address in Australia;
• a copy of the refusal letter and, if you have it, the decision record;
• the names of any family members who were refused with you; and
• details of your representative, if you have one.

You do not need to include your full arguments or all of your evidence with the application. Submissions and evidence come later. The priority at this stage is a valid application lodged in time.

Lodging online

The Tribunal accepts review applications through the electronic application form on its website at art.gov.au. The Tribunal's practice direction also permits a paper form or a letter that meets the legal requirements, delivered to a registry or sent by email. Online lodgement is the fastest method and gives you an immediate record that the application was made.

Keep a copy of everything you submit. If there is ever a question about whether a Protection Visa Subclass 866 ART Review was lodged in time, that record matters. Our guide to appealing a protection visa refusal to the ART explains the time limit in more detail.

What Happens After You Lodge a Protection Visa Subclass 866 ART Review?

After you lodge, the Tribunal tells the Department that a review has started, the Department sends the Tribunal its file on your protection visa application, and your case waits to be allocated to a Tribunal member. Section 352 of the Migration Act requires the Tribunal to give the Secretary of the Department written notice of the application as soon as practicable. The Department must then give the Tribunal the documents relevant to the decision under review.

The Tribunal confirms that your application has been received and gives it a case number. From this point, the Tribunal will contact you or your representative about the progress of the Protection Visa Subclass 866 ART Review, including any request for documents and the hearing invitation.

One feature of a Protection Visa Subclass 866 ART Review surprises many applicants. The Department does not usually take part. Under section 348A of the Migration Act, the Minister is a "non-participating party" to the review of a reviewable protection decision. The Department does not usually appear at the hearing or argue against you. The Tribunal can order the Minister to participate if that would help it reach the correct decision, but this is not the normal course.

This means the hearing is not a contest between you and the Department. It is an inquiry by the Tribunal member into whether you meet the criteria for the visa. The member will test your evidence directly.

While the review is waiting to be allocated, tell the Tribunal promptly if your address, email, phone number or representative changes. Missing a letter can lead to a missed hearing. Our overview of what to expect in an ART review after a visa is refused gives a general picture of the Tribunal process across visa types.

How to Get the Department's File and Decision Record

You can ask the Department for access to the documents it gave the Tribunal, and you should make that request as soon as the review has started. Section 362A of the Migration Act entitles a review applicant to request access to, or a copy of, any written material the Department gave or produced to the Tribunal for the review. The request can be made at any time after the review application is lodged and before the Tribunal gives its decision.

Timing matters. The Tribunal's practice direction states that an applicant should request the documents as soon as practicable after starting the review. The Tribunal will not treat a late request for the file, by itself, as an adequate reason to adjourn a hearing. If you wait until the hearing invitation arrives, you may have to go to the hearing without the file.

The entitlement has limits. Access is subject to the non-disclosure provisions in sections 375A and 376 of the Migration Act and to the Privacy Act 1988. Some material may be withheld or given only in part.

Why the decision record is the starting point

The decision record is the delegate's written reasons for refusing your Subclass 866 application. It is the most important document in a Protection Visa Subclass 866 ART Review. It tells you exactly which findings the delegate made against you, and why.

Read it closely and identify:

• which of your claims the delegate accepted;
• which claims the delegate rejected, and the reasons;
• any finding that you were not credible, and what it rests on;
• the country information the delegate relied on; and
• any finding that you could relocate safely within your country, or that your government could protect you.

Each adverse finding becomes a task for the review. Some can be answered with evidence, some with an explanation, and some rest on a mistake of fact.

What else to look for in the file

The file usually contains your application, your statement of claims, your earlier visa applications, the interview recording or notes, and any documents you provided. Compare what you said at each stage, because the Tribunal will. Any inconsistency in the file should be identified and addressed before the hearing, not discovered by the member at the hearing.

Preparing Written Submissions and Further Evidence

Written submissions set out, in an organised way, why the Tribunal should find that you meet the criteria for a protection visa, and they are usually lodged with further evidence before the hearing. Submissions are not required by law, but in a contested Protection Visa Subclass 866 ART Review they are the main tool for directing the member to the issues that matter.

Good submissions identify the legal test for each claim, respond to each adverse finding, point to the supporting evidence and explain the relevant country information.

The legal tests the Tribunal applies

The Tribunal applies the same criteria as the Department. Under section 36(2)(a) of the Migration Act, you must be a refugee as defined in section 5H, which means a well-founded fear of persecution for a reason listed in the Act. If you are not a refugee, section 36(2)(aa) asks whether there are substantial grounds for believing that there is a real risk you will suffer significant harm as a necessary and foreseeable consequence of removal. This is complementary protection. Claims involving religious persecution or sexual orientation or gender identity are often considered under both tests.

Further evidence

Because the review is a fresh decision, the Tribunal can consider evidence that the Department never saw. Useful evidence may include:

• documents that support events in your account, such as police reports, medical records, court papers or threatening messages;
• evidence of your identity, if identity was an issue in the refusal;
• evidence of your religious, political or community activities in Australia and at home;
• current country information from reliable sources; and
• statements from people who know about your circumstances.

Documents not in English should be translated by a NAATI certified translator before they are lodged in the Protection Visa Subclass 866 ART Review. Our guide to evidence in a protection visa application explains which kinds of evidence usually carry weight.

New claims at the review stage

You can raise matters at the Tribunal that were not raised with the Department. However, the member will ask why a claim or a document is appearing for the first time. A new claim without an honest explanation for the delay can damage your credibility. If there is a good reason, such as fear, trauma, shame or poor earlier advice, it should be explained clearly in writing. Our article on whether delay affects a Subclass 866 claim covers how delay is assessed.

Statements and Witness Evidence in a Protection Visa Subclass 866 ART Review

A further written statement from you is often the most useful document in a Protection Visa Subclass 866 ART Review, because it lets you respond in your own words to each reason the delegate gave for refusal. The statement is your own evidence. It should be truthful, detailed and consistent with what you have said before. Where it corrects or explains earlier evidence, it should say so openly.

A review statement is different from the original statement of claims. It does not simply repeat your story. It addresses the specific points in the decision record, fills gaps the delegate identified, and explains any inconsistency. Our guide to the protection visa statement of claims explains how the original statement is structured.

Statements from other people

Statements from other people can support your account. These may come from family members, community or religious leaders, friends, partners or people who witnessed events. A useful witness statement explains who the person is, how they know you, and what they personally saw or know.

Oral evidence from witnesses

If a witness can give important evidence, you can ask the Tribunal to hear from them at the hearing. The request should be made in writing before the hearing and should explain who the witness is and what their evidence will cover. The Tribunal decides whether to take oral evidence from a witness. A witness who is available and has given a written statement in advance is far more useful than one introduced without notice.

The Hearing Invitation and What Happens If You Do Not Attend

The Tribunal will generally invite you to a hearing to give evidence and present arguments, and if you do not attend after proper notice, the Tribunal can dismiss your Protection Visa Subclass 866 ART Review. The invitation tells you the date, time and place of the hearing, or how to join it if it will be held by video or telephone. It may also ask you to confirm whether you need an interpreter, whether you will call any witnesses, and whether you intend to provide further documents. Reply to every request by the date given.

The Migration Act allows the Tribunal to decide a review in your favour on the papers without a hearing, if the evidence already supports that result. In most Protection Visa Subclass 866 ART Review matters, however, credibility is in issue and a hearing is held.

If you cannot attend on the date given

If you have a genuine reason why you cannot attend, contact the Tribunal immediately and ask for the hearing to be rescheduled. Give the reason in writing with evidence, such as a medical certificate. Do not assume the request will be granted, and do not simply stay away.

If you do not attend

Under section 99 of the ART Act, the Tribunal may dismiss the application if you fail to appear at a hearing and the Tribunal is satisfied that you received appropriate notice of the date, time and place. Section 368C of the Migration Act allows you to apply for reinstatement of a dismissed application. The time limit to apply for reinstatement is short and strictly applied. If you do not apply in time, the Tribunal must confirm the dismissal. Your protection visa application is then finally determined, and the section 48A bar on a further protection visa application continues to apply.

What Happens on the Hearing Day?

On the hearing day, a Tribunal member questions you about your claims and your evidence, and you have the opportunity to explain why you fear returning to your country. The hearing is less formal than a court, but what you say is evidence in your Protection Visa Subclass 866 ART Review, and the member will rely on it.

Who is present

The hearing is conducted by a Tribunal member. You attend with any family members included in the review, an interpreter if needed, and your representative. Witnesses join when their evidence is taken. As explained above, the Department does not usually attend, because the Minister is a non-participating party in a Protection Visa Subclass 866 ART Review.

Interpreters

You are entitled to ask for an interpreter, and you should do so if you are not fully confident in English. The Tribunal arranges the interpreter. Tell the Tribunal the exact language and dialect you speak. If you cannot understand the interpreter at the hearing, say so immediately. A problem raised at the start can be fixed.

How the questioning runs

At the start, the member usually explains how the hearing will run and asks you to take an oath or make an affirmation that your evidence will be true. The member then asks questions. The questions often follow the issues identified in the decision record and in your submissions. Expect detailed questions about dates, places and people. Expect the member to put to you any inconsistency in your evidence, and any country information that does not support your claims, and to ask you to respond.

Answer each question directly and honestly. If you do not know or do not remember something, say so rather than guess.

Towards the end of the hearing, your representative is usually given an opportunity to make oral submissions or to ask you questions to clarify your evidence. Our guides to the protection visa ART hearing and to preparing for the ART hearing with a lawyer explain the kinds of questions members ask and how to prepare for them.

After the hearing: post-hearing submissions

The member may allow you to provide further submissions or documents after the hearing. This often happens where a new issue arose at the hearing. The member will set a date. Anything lodged after that date may not be considered. If the Tribunal later relies on information that is adverse to you and that you have not seen, it will generally give you an opportunity to comment on it before deciding. Treat any such invitation with the same urgency as the hearing itself.

The Tribunal's Decision in a Protection Visa Subclass 866 ART Review

At the end of a Protection Visa Subclass 866 ART Review, the Tribunal either affirms the refusal or sets it aside, and it gives you a written statement of its decision with reasons. Section 368 of the Migration Act requires the Tribunal to prepare a written statement that sets out the decision and the reasons for it. Section 368A requires the Tribunal to notify you by giving you a copy of that statement.

The decisions available to the Tribunal are:

• Affirm the decision. The refusal stands.
• Vary the decision. The Tribunal changes part of the decision.
• Set the decision aside and substitute a new decision.
• Remit the matter to the Department for reconsideration. Under section 349(2) of the Migration Act and regulation 4.33, the Tribunal can direct, for example, that you are a refugee within section 5H(1), or that you meet the complementary protection criterion. The Department must then reconsider the application in accordance with that direction.

In a successful protection review, remittal with a direction is the usual outcome. The Department remains bound by the Tribunal's finding that the specified criterion is met. It must still assess the criteria that were not the subject of the direction, such as health, character and security, before the visa can be granted.

If the Tribunal affirms the refusal, the protection visa application is finally determined. The Minister has a personal power under section 351 of the Migration Act to substitute a more favourable decision in the public interest, but that power is not a right of review. Judicial review by a court, limited to legal error, is a separate process.

What Happens to Your Bridging Visa During the Review?

If you hold a bridging visa granted with your Subclass 866 application and you lodge a valid review application in time, that bridging visa generally continues while the Protection Visa Subclass 866 ART Review is pending. It keeps you lawful while the Tribunal considers your case, and its conditions, including any work conditions, continue to apply.

The bridging visa ceases a set period after the Tribunal affirms the refusal, or after the review is withdrawn. If the Tribunal remits the matter, the application is no longer finally determined and the bridging visa continues while the Department reconsiders it.

Check your bridging visa conditions in VEVO before you rely on them. A person who applied for protection after their substantive visa expired may hold a different bridging visa, with different conditions. Our guide to bridging visas in Australia explains the main types.

How My Migration Lawyers Handles a Protection Visa Subclass 866 ART Review

My Migration Lawyers acts in many Protection Visa Subclass 866 ART Review matters, including complex cases involving credibility findings, identity issues, delayed claims and claims that were never properly put to the Department. We are capable of handling a review from the refusal letter to the hearing and beyond.

Our work on a Protection Visa Subclass 866 ART Review follows a set path:

• Securing the review. We confirm the time limit from the notification, prepare a valid application and lodge it with the Tribunal online.
• Obtaining the file. We request the Department's file as soon as the review starts and analyse the decision record finding by finding.
• Taking your account. We take your own account and present it in the form the law requires. Your statement is your own evidence. You review it, correct it and approve it, and you decide which claims are advanced.
• Building the evidence. We identify the further evidence, witness statements and current country information that respond to each adverse finding.
• Preparing submissions. We prepare written submissions that apply the refugee and complementary protection tests to your evidence.
• Preparing you for the hearing. We explain how the hearing will run, arrange interpreter and witness requests, attend with you and make submissions to the member.

The practice is led by Principal Lawyer Weiwei Zhang. Consultations are held by video, so you can speak with us wherever you live in Australia. Our protection visa lawyers page and our complete guide to the protection visa in Australia explain how we act across the whole process.

If you have received a refusal and need a Protection Visa Subclass 866 ART Review, act now, because the time limit is short and strictly applied. Book a consultation with My Migration Lawyers, or call us on 1300 040 300.